Deprivation of Liberty Safeguards (DoLS)

The Deprivation of Liberty Safeguards (DoLS) is a legal process which is linked to the Mental Capacity Act 2005. The safeguards aim to make sure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom.

Some people living in care homes and hospitals lack the mental capacity to make key decisions about their care or treatment. For their safety, it may be necessary to restrict their liberty. For example, they may not be able to go out on their own, and carers may need to check on them regularly.

If a person is assessed as being deprived of their liberty this does not imply any criticism of the care they receive. Two independent professionals, often a social worker and a doctor, consider the person’s best interests and complete several DoLS assessments. These are scrutinised by one of our managers before that person’s deprivation of liberty may be formally authorised.

The term deprivation of liberty relates to Article 5 of the Human Rights Act 1998, the right to liberty and security. In March 2014, the Supreme Court published a landmark ruling, with an 'acid test' to help determine when a person is being deprived of their liberty.

This asks two questions:

Is the person subject to continuous supervision and control?

Is the person free to leave? (This applies even if a person does not wish to leave, and/or is physically unable to do so.)

This ruling significantly lowered the legal threshold of what constitutes a deprivation of liberty. As a consequence, there has been a large increase in DoLS referrals from care homes and hospitals. The Law Commission is currently drafting new legislation to replace DoLS. In Derbyshire, DoLS referrals are prioritised, with precedence given to people who are subject to the most significant restrictions.

A person subject to a deprivation of liberty safeguards authorisation has to have a representative to act on their behalf. This will normally be a family member or carer, but can also be a professional appointed for that purpose.

The representative must be willing and able to maintain regular and frequent contact with the person. They must also be consulted over any care changes and be invited to care reviews. The representative is able to have access to any care records, and is able to request that the deprivation of liberty authorisation is reviewed to ensure that it remains lawful.